The opinion of the court was delivered by: Webb, Justice
Appeal as of right pursuant to N.C.G.S. § 7A-27(a) from a judgment imposing a sentence of death entered by Albright, J., at the 11 September 1995 Special Session of Superior Court, Davidson County. Heard in the Supreme Court 14 October 1997.
The defendant was indicted for the murder and rape of April Lee Sweet on or about 13 July 1982. In February of 1985, he was tried capitally and found guilty of first-degree murder and first-degree rape. He received a death sentence for the murder conviction and a consecutive term of life imprisonment for the rape conviction. We affirmed the conviction and the death sentence in State v. Zuniga, 320 N.C. 233, 357 S.E.2d 898, cert. denied, 484 U.S. 959, 98 L. Ed. 2d 384 (1987).
The defendant filed a motion for appropriate relief in the Superior Court, Davidson County. That motion was denied on 20 July 1991. This Court allowed the defendant's petition for a writ of certiorari and in State v. Zuniga, 336 N.C. 508, 444 S.E.2d 443 (1994), vacated the death sentence and remanded for a new sentencing proceeding on the grounds that the jury instructions were unconstitutional under McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed. 2d 369 (1990).
At the new sentencing proceeding, Dr. Antonio Puente, an expert in psychology, testified for the defendant. Dr. Puente testified that he gave the defendant several psychological tests and that the results of each of the tests showed the defendant was in the impaired range. Dr. Puente concluded that the defendant suffered from mild to moderate mental retardation, with an intellectual age of seven, and organic brain syndrome of moderate range. Dr. Puente testified that the defendant's intellectual age of seven means he functions like an average seven-year-old. Organic brain syndrome indicates there is something wrong with the brain and that, as a consequence, the defendant's behavior is abnormal. The defendant scored a 56 on an IQ test. Dr. Puente also testified that the defendant had very low impulse control. He said that he felt the defendant's ability to appreciate the criminality of his conduct and his ability to conform to the requirements of law were impaired.
Dr. Patricio Lara, a forensic psychiatrist, testified that he had examined the defendant and that, in his opinion, the defendant's abstract thinking process was very limited, as were his judgment and self-awareness. In his opinion, the defendant is mentally retarded, suffers from organic brain damage, and is significantly restricted in his ability to conform his actions to the limits established by law. The defendant scored 64 on an IQ test administered by Dr. Lara.
Other evidence presented at the sentencing proceeding is unnecessary to recite to have an understanding of this opinion.
The jury found one aggravating circumstance, that the murder was committed while the defendant was engaged in the commission of first-degree rape. N.C.G.S. § 15A-2000(e)(5) (1997). The jury found two statutory and two non-statutory mitigating circumstances. The defendant did not request and the court did not submit the mitigating circumstance, "The age of the defendant at the time of the crime." N.C.G.S. § 15A-2000(f)(7). The jury found that the mitigating circumstances did not outweigh the aggravating circumstances and recommended the death penalty, which was imposed.
The defendant assigns error to the court's failure to submit the (f)(7) mitigator, "The age of the defendant at the time of the crime." N.C.G.S. § 15A-2000(f)(7). The court was required to submit to the jury any statutory mitigating circumstances which the evidence would support regardless of whether the defendant objects to it or requests it. State v. Lloyd, 321 N.C. 301, 312, 364 S.E.2d 316, 324, sentence vacated on other grounds, 488 U.S. 807, 102 L. Ed. 2d 18 (1988).
In interpreting the (f)(7) mitigator, we have held that chronological age is not the determinative factor. We have said age is a flexible and relative concept. "The defendant's immaturity, youthfulness, or lack of emotional or intellectual development at the time of the crime must also be considered." State v. Bowie, 340 N.C. 199, 203, 456 S.E.2d 771, 773, cert. denied, 516 U.S. 994, 133 L. Ed. 2d 435 (1995); see State v. Johnson, 317 N.C. 343, 393, 346 S.E.2d 596, 624 (1986); State v. Oliver, 309 N.C. 326, 372, 307 S.E.2d 304, 333 (1983).
In State v. Holden, 338 N.C. 394, 450 S.E.2d 878 (1994), we held that the age circumstance should have been submitted to the jury where there was substantial evidence showing that despite the defendant's being thirty years old, his mental age was ten years and his problem-solving skills were closer to those of a ten-year-old. Id. at 407-08, 450 S.E.2d at 885.
In this case, the defendant presented evidence from Dr. Puente and Dr. Lara that was at least as substantial as that offered in Holden. Dr. Puente testified that the defendant has a history of mild to moderate mental retardation and organic brain syndrome of moderate range. On one IQ test administered by Dr. Puente, the defendant scored a 56, signifying an intellectual age of 7.4 years. He administered numerous other tests, all of which indicated that the defendant is impaired. Dr. Puente was of the opinion that the defendant was impaired at the time he committed the murder and rape and that the defendant's ability to appreciate the criminality of his conduct and his ability to conform to the requirements of the law were impaired at the time of the crime.
Dr. Puente's testimony was supported by Dr. Lara's testimony, who testified that the defendant suffered from mild mental retardation and that his performance on tests indicated evidence of chronic brain damage. The defendant scored a 64 on an IQ test administered by Dr. Lara. Dr. Lara concluded that the defendant's mental condition significantly restricted his ability to conform his actions to the limits established by the law.
The testimony of Dr. Puente and Dr. Lara constitutes substantial evidence that would support a finding by the jury that the defendant's age at the time of the crime was mitigating. Therefore, the trial court was required to submit the (f)(7) statutory mitigating circumstance to the jury. See id. at 407, 450 S.E.2d at 885.
This Court has repeatedly held that the failure to submit to the jury a statutory mitigating circumstance that is supported by the evidence is reversible error, unless the State can prove the failure to submit was harmless beyond a reasonable doubt. State v. Wilson, 322 N.C. 117, 145, 367 S.E.2d 589, 605 (1988). The State argues that the jury considered the evidence concerning the defendant's mental age when it weighed the (f)(2), (f)(6), and the non-statutory mental retardation mitigating circumstances, and that it is clear that the jury would still have returned a sentence of death. We disagree. The State's argument ignores the fact that each statutory mitigating circumstance must be given individual weight, if found to exist. See State v. Greene, 329 N.C. 771, 776-77, 408 S.E.2d 185, 187 (1991). Furthermore, the submission of non-statutory mitigating circumstances that parallel statutory mitigating circumstances does not satisfy the State's burden of showing harmlessness beyond a reasonable doubt ...